The First Contemporary Culture Warrior
On July 1, 1987, President Ronald Reagan nominated U.S. Circuit Court Judge Robert H. Bork to the United States Supreme Court and while this nomination was not the first politically controversial nomination to the High Court, it was politically transforming and the echoes of that nomination and the Senate’s response to it can still be heard today. Robert Bork died today of complications from heart disease. He was 85 years old and is survived by his wife, three children and two grandchildren. Regardless of our individual politics and opinions of Bork as a jurist, his family has our condolences. My obituary of Judge Bork follows the jump.
Bork had previously been known to the American public as Solicitor General of the United States for the Nixon Administration who did what Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned rather than do — fire Special Prosecutor Archibald Cox, who was investigating the Watergate burglaries.
But Judge Bork was well-known to legal scholars as one of the foremost and direct proponents of a particular form of originalism which he labeled “interpretivism,” which is not dissimilar from the sort of Constitutional philosophy which my friend Trub Okkil approximated in our recent Opposite Day symposium. Bork made his name in academia for good scholarship in the realm of antitrust law, but his conservative views, frank embrace of originalism, and criticism of the famous Roe v. Wade (abortion rights) and Bakke v. UC Regents (affirmative action) cases cast him as a polarizing figure in the culture wars of the late 1980’s.
Bork’s nomination set off a firestorm of political activity from Democrats, which spiraled into a massive media and political campaign urging Senators to not confirm him. Bork and his supporters protested that Bork’s academic and judicial writings were being massively misrepresented to make him look like some sort of monster, but whether just or not, it worked, and the Senate rejected Bork’s nomination by a vote of 42-58.
The seat eventually went to Anthony Kennedy, who currently is thought of as the fulcrum vote in most politicized Constitutional cases pending before the Court today. Judge Bork’s last name has become a verb, meaning “to oppose a candidate or nominee to office by way of misrepresenting that person’s record of past performance.” Whether Bork was actually Borked remains a subject likely to raise tempers in the realm of legal academia and popular followers of Supreme Court politics.
I wrote my undergraduate political science thesis about the Bork nomination and its aftereffects, only a few years after it happened. While I like to think that of course I had been right all along even as a snotty undergraduate, I think there was something to it. The nomination and resistance to it saw partisan polarization to a degree that had not been in place for at least a generation previously. Social issues, intractable and not susceptible of compromise, became the rallying points for political support. The strategy of parties targeting moderate members of the other party from electorally close state to gain support on particular issues, and the retribution of party loyalists to officeholders who seemed vulnerable to such pressure, were prototyped in the pressures put on Arlen Specter, who was then a Republican but stepped out of line with his party to question Bork’s jurisprudential philosophy about privacy rights and the historical mutability (or lack thereof) of notions of individual liberties.
The substantive issues discussed between Specter and Bork remain centerpiece foci of Constitutional law to this day. All the elements were there beforehand, of course, but the issues, strategies, and coalitions that coalesced on either side of the Bork nomination remain in play to this day. When our culture warriors engage one another in 2012, they are in a very real sense re-enacting the Bork nomination again and again.
Bork went on to work for the American Enterprise Institute, wrote several popular books about law, and went on the right-wing lecture circuit for many years. One of his books has what must be one of the most pungent titles to any piece of media ever: Slouching Towards Gomorrah. Agree with it or not, that’s one awesome title. He taught constitutional and antitrust law at Ave Maria School of Law, and was a senior legal and judicial advisor to the recent Mitt Romney for President campaign. He was figure around whom many young lawyers, both liberal and conservative, rallied their respective causes — sometimes, on either side, without having spent a great deal of time making the effort to understand his philosophy.
Whether he wanted to be such a polarizing figure or not, Robert Bork’s unsuccessful bid to the pinnacle of the United States’ legal profession became and still stands as the First Bull Run of today’s culture wars. Whether in the long run he was McDowell or Beauregard is a question I will leave for you all to decide amongst yourselves. As for me, like I mentioned before, he was the subject of my undergraduate thesis so whatever philosophical disagreements I’ve had with him the news of his death leaves me with a touch of melancholy.